England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 July 2013

His Honour Judge Cooke QC :

1. In this matter I am concerned with an application pursuant to s.288 of the Town and County Planning Act, 1990 with respect to a decision made by the First Defendant's Inspector on the 23^rd of February 2012, dismissing the Claimant's appeal against a refusal of planning permission for a surface (i.e. open cast) coal mine at Bradley, Leadgate, Near Consett, County Durham.
2. I am grateful for the written and oral submissions of all counsel.
3. The decision which I must scrutinise was one which had to be taken in the context of s.38 (6) of the Planning and Compulsory Purchase Act, 2004 which provides that:

"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise".

4. The correct identification of and construction of relevant development plan policy is therefore of crucial significance. Here, there is no dispute that the development plan policy of fundamental importance was Policy M7 of the Minerals Local Plan which provides:

"Within the exposed coalfield area there will be a presumption against proposals for open cast mining of coal and/or fireclay unless:

a) they are environmentally acceptable, or can be made so by planning conditions or obligations; or

b) they provide local or community benefits which clearly outweigh the adverse impacts of the proposal. In assessing such benefits particular regard will be had to:

i) the contribution of the proposal towards the comprehensive reclamation of areas of derelict or contaminated land;

ii) the avoidance of sterilisation of mineral resources in advance of development which is either subject to a planning permission or allocated in an adopted development plan (in accordance with Policy M15)

iii) their contribution (or otherwise) to the maintenance of high and stable levels of economic growth and employment;

iv) the need for supplies of fireclay to serve local brickworks.

All proposals should avoid the unnecessary sterilisation of other minerals, particularly fireclays and brick clays"

5. It is common ground that the interests reflected in ii) and iv) mentioned immediately above and any potential concern over the sterilisation of other minerals were not matters which fell to be considered as part of the decision in this instance.
6. The construction of policy is a matter for me: Tesco Stores v Dundee City Council (2012) UKSC 13.

I have found it helpful in this case to step back and construe the policy which I have set out and identify how it might be used to provide a sequential decision making process by a decision-maker in a case of this type.

7. The correct analysis is straightforward. There is a presumption against development of this type unless the considerations identified in M7 a) or b) apply. It is therefore necessary either first to identify whether the considerations identified in M7 a) or b) apply and then to decide the matter with or without reference to the presumption or, alternatively to proceed on the basis of the presumption, ascertain whether it is rebutted by the considerations identified in a) or b) and decide the matter accordingly. Either approach should lead to the same result, correctly reflecting the land use planning merits in the specified policy context.
8. No presumption comes into play in relation to the decision as to whether or not the factors identified in M7 a) or b) exist so as to exclude the operation of the presumption. To proceed on any contrary basis must be erroneous – the existence of a presumption cannot be determined by the effect of the presumption itself.
9. The decision as to whether or not the factors identified in M7 a) or b) exist has however to be taken in the context of central government advice as embodied in MPG3, in particular:

"… the Government takes the view that, although some sites are capable of being well restored, opencast coal mining can be extremely damaging to the environment and amenity of a locality whilst it is taking place, and the restored landscape can take many years to mature".

and

"The Government recognises that the costs and benefits of an opencast proposal can best be assessed by the communities and local authorities who know the area best and are most directly affected."

I consider that these passages of central government advice constitute, respectively, a stressing of particular features of open cast mining development which must be taken into account at all stages of the decision making process, and an indication of a desirable evidential weighting in favour of the local assessment in relation to the evaluation of costs and benefits, again of potential relevance at all stages of the decision making process.

The former passage is consistent with a policy which incorporates a negative presumption as does M7. The latter passage is of clear relevance to the approach to be taken in relation to the decision as to whether the factors identified in M7 a) or b) exist.

10. A decision in this context ought therefore to include a clear and self-standing (in the sense of not proceeding on the basis of a negative presumption) assessment as to whether the negative presumption in Policy M7 applies. That assessment should reflect the evidential weighting in favour of local assessment referred to in central government advice. Once the applicability or not of the negative presumption has been determined the significance of other material considerations needs to be evaluated, leading to a final decision.
11. What did the Inspector do here and was it consistent with that approach?

The key sections of the decision letter are to be found at paragraphs 10 to 19 inclusive. I detect no error in paragraphs 10 to 14 inclusive but I am troubled by paragraph 15. That paragraph reads:

"Having said this, it is acknowledged that there is no presumption against surface working, where the mineral planning authority (MPA) concludes that the predicted levels of environmental harm would be acceptable. However where the MPA judges there to be material harm to the environment the presumption against changes the onus of justification from one where the MPA has to defend its reasons for refusal to one where the onus falls to the developer to demonstrate why the MPA's reasons are unjustified and, if necessary, why any benefits clearly outweigh the identified harm found".

12. I regret that I find paragraph 15 to be a misinterpretation of policy M7. By conflating or confusing the evidential weighting to be given to the local assessment of the costs and benefits of an open cast proposal with the potential existence of a negative presumption the Inspector has circumvented the need to decide, independently of any presumption (albeit with an evidential weighting in favour of the local assessment) whether or not the negative presumption arises at all. Put differently, the Inspector has elevated the mineral planning authority's assessment from being a matter of evidential significance to the trigger for the applicability of the negative presumption potentially provided for in policy M7.

This is, in my judgement a serious failure correctly to understand the policy framework against which the relevant decision had to be taken. Are there further indications that such a mistake has led the Inspector into error?

13. In relation to paragraph 17 of the decision letter there is a further indication of a confused approach. Evidential weighting in favour of the local assessment is indeed relevant at all stages of the decision making process. However the two sentences:

"The local view must carry significant weight, even in the appeal situation. Not to do so would render the presumption meaningless"

are difficult to reconcile with a proper understanding of the policy context. There is no automatic connection between the existence of the presumption and the giving of evidential weight to the local assessment. Reading paragraphs 15 and 18 together reinforces the impression that the Inspector has erroneously identified the mineral planning authority's assessment as the trigger for the negative presumption, which it is not.

14. The Inspector should have been deciding the issue of environmental acceptability in the context of deciding whether the negative presumption might apply, not against the background of a negative presumption.

The section of the Inspector's decision letter dealing with landscape issues, paragraphs 20 to 53 inclusive is conventional. Paragraph 52 is capable of criticism on the basis that it recites an argument which can be used to justify an adverse conclusion in relation to all but the most enormous opencast site. Although paragraph 53 commences "Thus the clear conclusion…" the reasoning is not particularly clear. The relationship between the conclusion reached in relation to landscape and the policy context is not specifically spelt out.

15. The sections of the Inspector's decision letter dealing with dust (paragraphs 55 to 59), noise (paragraphs 60 to 65), blasting (paragraphs 66 to 68), lighting (paragraph 69) and hydrology (paragraphs 70 to 72) are also conventional. No individual or cumulative basis for a refusal of planning permission is identified in these areas although an "advertising" of an unpopular activity is rightly acknowledged.
16. Loss of amenity space and opportunity is however identified as a "very strong local objection" (paragraph 76). Under the heading "Summary of community impact" the Inspector's decision letter includes: "Even with the high levels of attenuation proposed, it is inevitable that the environmental climate would be dustier and noisier. If one adds the disruption to access and community use, this registers a much stronger objection to be weighed in the balance".

It is perhaps significant that in both of these passages "objection" rather than "reason for refusal" is the specific focus. I am very conscious of the need not to over construe a decision letter. However, where there appears to have been a misconstruction of the policy context, a close reading is unavoidable. What concerns me here is that the way the decision letter is written seems to owe less to an identification of whether the negative presumption arises, with reference to policy M7 a) and b) than to an analysis, in broad terms of the merits and de-merits of the proposal, judged against the background of a negative presumption.

My concerns in this regard are magnified by the whole structure of the decision letter which seems inconsistent with the need to identify whether or not the negative presumption applied.

17. The section on need is juxtaposed between that on access (which I mention in passing does not appear to be a section upon which I need concentrate in the posed context) and that on ecology.

Need is not a topic the examination of which can assist with the identification of whether or not the negative presumption arises – see policy M7 a) and b).

18. It appears to me that paragraph 102 of the decision letter confirms the proposition that the approach taken was that the negative presumption arises because of the mineral planning authority's assessment. It includes:

"The first observation is that each tonne of indigenous coal won, means one less that needs to be imported and that has positive implications for the U.K. balance of payments. Clearly this is so, but the presumptive policy and lack of a target supply figure do not suggest that this should be accorded great weight, and certainly not beyond maintaining surface won supplies at roughly current levels.

…To include in the balance national benefits from factors such as balance of payments, as proffered by UK Coal, should count for very little. If they were seen as crucial then these would again undermine the negative presumption and, almost certainly, rekindle hope for winning coal at every rejected site, especially the larger ones".

19. The problem I detect with this passage is it seems to illustrate that the long analysis of matters discussed at the public inquiry all proceeded against the background of the erroneous identification of the applicability of the negative presumption as set out in paragraph 15 of the decision letter. Whereas I am inclined to agree with the Inspector's analysis of the need argument if the negative presumption had correctly been found to apply, the weight to be given to such a need argument if the negative presumption does not apply may well be quite different.
20. Paragraph 112 of the decision letter, under the heading "ecology" includes:

"The key point is that local groups and people would much rather wait for any benefits than suffer the loss of the local asset for the 10-15 years of the coal operation and meaningful restoration".

I am not sure what to make of this passage. In what context is this a key point? Not it would seem in deciding whether the negative presumption in policy M7 applies because paragraph 107 proceeds on the premise that it should not be undermined. There appears to be some confusion between the evaluation of ecological consequences and questions of local perception. It may not be particularly significant but it strikes me as another example of the lack of precision and structure which has rendered dealing with this challenge rather difficult.

21. The sections of the decision letter concerned with heritage (paragraphs 114 to 119), employment (paragraphs 120 to 124) and precedent (paragraphs 125 to 131) all to some extent disclose a possible underlying ill-disposition to the development although not in my judgement to such an extent as to provide a basis for a challenge to the Inspector's overall conclusion, if the policy framework had been correctly understood and applied. In commenting in this way I have in mind the expressed preference for "local input and folklore" over accuracy in the heritage section, the reference to the loss of jobs abroad in the employment section and the reference to giving weight to what I can call "fear of precedent" in the precedent section. These are however fairly minor points.
22. I am not convinced that sustainability is correctly identified as "a key driver for the presumption against" as referred to in paragraph 135 but, in the context of the present argument, I do not consider that matters.
23. Why there was any particular need to refer to "localism" is not entirely clear. I express some concern in relation to the passage in paragraph 139:

"On the other hand, in a situation like this, where the County Council and local groups and individuals are unified in their objections, based on their understanding of the prevailing planning policy, then greater weight can be given." (My emphasis).

It is what planning policy is, not what particular participants in the process believe it to be, which is relevant. I do not consider that there is anything in the Localism Act 2011 which tended to support the objections to this development, as the Inspector hints that there was. It must be the specific provisions of a statute that need to be looked at in deciding questions of relevance to a particular proposal and not, as seems to have been considered here, some general impression of the likely direction of legislative thinking.

24. The section on benefits (paragraph 141 to 150) comes toward the end of the decision letter. This is in itself perhaps unsurprising given the need to assess the benefits/adverse impacts balance in order to decide the applicability or not of the negative presumption in accordance with Policy M7 b). I note that paragraph 150 includes:

"Perhaps crucially in this case, is the rejection of the offers by the County Council as well as the local communities and population. This says firmly that the benefits to the local community would not clearly outweigh the harm. Looked at another way, the offers or outcomes would not be so beneficial as to justify the intrusion and environmental disbenefits …" (my emphasis)

The question which arose in this area had in my judgement to be determined objectively, the decision maker forming his own view (albeit giving considerable weight to the local view) in relation to the benefits/adverse impacts balance, having particular regard to the specific considerations identified in policy M7 b) i) to iv). Paragraph 150 seems to dispose of this issue primarily, if not exclusively, by reference to local perception. Although I can see that the use of the word "clearly" in policy M7 b) might well lead a decision maker in this area to be significantly interested in the local perception of the benefits/adverse impacts balance I do not consider an emphatic answer in that area from the quarters referred to excused the need for an objective assessment. That must in my judgement be particularly so in a case such as this where those who reject the benefits case are also who have advanced arguments in relation, for example noise, dust and blasting which have been rejected by reference to objective standards.

25. The summary section of the decision letter does not proceed by reference to an analysis of this matter in the specific context of Policy M7. There is therefore nothing therein to set against what appears to have been a misunderstanding of the central policy against which this development fell to be considered discoverable from the terms of paragraphs 14 to 18, and in particular paragraph 15 of the decision letter. My reading of the rest of the decision letter, despite the valiant efforts of Mr Strachan Q.C. to defend it, leaves me firmly under the impression that the Inspector failed correctly to understand, analyse and apply policy M7.
26. The irreducible minimum to which the Claimant was entitled was a decision which accurately stated policy, and in particular the development plan policy which had to lie at the heart of the determination, and then applied that policy with sufficient clarity to enable the Claimant to appreciate that its case had been fairly disposed of. This decision letter failed to do that and must be quashed.
27. I appreciate that the Claimant raised, or attempted to raise, other arguments. These would not have led me to quash this decision, although to a greater or lesser extent they struck me as having some limited merit. However the point in relation to the "no go area" was in substance concerned with a matter of background and I did not find any of the "findings not based on evidence" points to be of sufficient importance to vitiate the decision. I considered whether I should exercise my discretion not to quash the Inspector's decision letter notwithstanding my conclusions. I decided that would be inappropriate having regard to the fundamental nature of the error which I identified and the fact that the determining issues involved an appreciation of amenity and landscape issues which I was ill placed to undertake.
28. I therefore uphold the Claimant's challenge on ground (a) and quash this decision. I will deal with any issue in relation to costs if necessary by way of written submissions if the parties agree, or alternatively a listing can be arranged.